Friday, July 31, 2015

The inevitable backlash to the Safe Campus Act came sooner than I expected--it started a few hours after the bill was introduced. What's jaw-dropping is that the backlashers aren't even bothering to hide their contempt for due process any more.

A woman named Sarah Merriman, identified by the Washington Post as a spokeswoman for SAFER Campus, has come out against the bill, which would provide badly needed due process protections for students accused of sexual assault. Ms. Merriman made it clear that she's not interested in hearing about due process rights for the accused at this time:

We are not at a point to analyze “due process,” when many survivors are publicly shamed on their campuses, when charges against assaulters can be dismissed out of hand by administrators, when an assaulter is allowed to sit across from a survivor and shout down their story.

If we are to truly believe in due process for all, we must prioritize the needs of survivors first and foremost.

Why do people like Ms. Merriman harbor such fear and loathing of fair hearings? Insisting that the system is "broke" for accusers is not a valid justification for keeping it "broke" for the students accused. And there is no question the system doesn't work for the men accused. The leading champion for victims' rights on campus has openly admitted that "in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to . . .." And: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen. . . ." The academy's hostility to due process has been roundly condemned by prominent legal scholars with no ax to grind and who skew progressive. A court recently ripped off the scab and revealed an ugly pus--students accused of sexual assault are being treated unfairly. That's not something dreamed up by conservatives or the "men's rights movement."

All of us can be concerned about injustice to both the victims of sexual violence and the victims of wrongful accusations of sexual violence without comprising our fidelity to either group. It's not all-or-nothing, it's not a zero sum game, and it's not always about them--meaning the gender zealots who dominate the public discourse on these issues. Sometimes, its about the innocents who are wrongly accused because, yes, sometimes accusers lie, and sometimes they are mistaken.

It is well to note that Ms. Merriman and her ilk do no favors for survivors of sexual violence by refusing to embrace fair processes for students accused of sexual violence. A system so obviously in need of repair undermines the public's confidence in the results it reaches. When it's widely, and correctly, believed that students accused of sexual violence aren't being treated fairly, triers of fact on disciplinary boards may become all the more wary about punishing even those who deserve to be punished, compounding the injustices. That's not good for anyone. The "round up the usual suspects" crowd has done more to harm victims of sexual assault than anyone (can you say "Duke Lacrosse"? "Hofstra"? "Brian Banks"? Jackie of Rolling Stone fame? Need more examples? Spend a few weeks reading through this blog--that's how long it will take you.)

It is time for all persons of goodwill to condemn comments like those made by Sarah Merriman. And all of us should urge our representatives to get behind this effort and to become a co-sponsor of it: http://www.house.gov/representatives/

Warning: don't go to that Jezebel article an empty stomach. The comments are very depressing. A lot of Jezebel readers are not happy about the Safe Campus Act bill--because, you know, due process sucks and all.

Here's my take on the backlash to the new Safe Campus Act bill--please read it.

Wednesday, July 29, 2015

The Safe Campus Act of 2015 sponsored by Republican Reps. Matt Salmon of Arizona and Pete Sessions and Kay Granger of Texas is a significant bill because it provides rights for both the accuser and the accused. The latter's interests typically are omitted from legislative efforts. The new bill would create a veritable sea change in the current legal landscape when it comes to handling allegations of sexual violence in the academy. Finally, at long last, persons accused of sexual violence are to be given protections. Here's FIRE's take on it--which is pretty much the last word on the subject. And here's a great illustration of how it works.

All of us should urge our representatives to get behind this effort, to sign onto it: http://www.house.gov/representatives/ And we should all write to our local newspapers to urge our representatives to sign on to it. It should not take much to sell this to the general public--who can be against fairness?

Here are nine things I like about the new bill:

1. The school's disciplinary action hinges on whether or not the accuser allows the school to report the alleged violation to law enforcement. Getting rapists off the street helps other potential victims of rape as well as men wrongly accused of rape since every rape diminishes the perceived integrity of every man accused of rape. Here's what the bill says: "If an individual provides a notification to the institution [that she does not want the matter investigated by law enforcement], the institution may not initiate or otherwise carry out any institutional disciplinary proceeding with respect to the allegation, including imposing interim measures . . . , but only if the individual includes in the notification a statement that the individual understands the effect under this subparagraph of providing the notification."

2. Police investigations come first. The school's internal disciplinary process is halted while law enforcement investigates. "During the period in which a law enforcement agency is investigating a covered allegation reported by an institution under sub-section (a), the institution may not initiate or otherwise carry out any institutional disciplinary proceeding with respect to the allegation . . .." The school is permitted to impose interim sanctions, but they are of limited duration without a hearing.

3. The schools must hold formal hearings with adequate notice at least two weeks before the hearing. This requirement precludes disciplining a student based solely on an investigation.

4. No hiding evidence. "The institution shall ensure that all parties to the proceeding have access to all material evidence, including both inculpatory and exculpatory evidence, not later than one week prior to the start of any formal hearing or similar adjudicatory proceeding. Such evidence may include but is not limited to complainant statements, third-party witness statements, electronically stored information, written communications, social media posts, and demonstrative evidence."

5. Lawyers are allowed. This is a big one. "The institution shall permit each party to the proceeding to be represented, at the sole expense of the party, by an attorney or other advocate for the duration of the proceeding, including during the investigation of the allegation and other preliminary stages prior to a formal hearing or similar adjudicatory proceeding, and shall permit the attorney or other advocate to ask questions in the proceeding, file relevant papers, examine evidence, and examine witnesses . . . ." A caveat: "The institution shall permit each party to the proceeding to safely confront witnesses, including the complainant, in an appropriate manner, including by submitting written questions to be asked by the person serving as the adjudicator in any formal hearing or similar adjudicatory proceeding . . . ."

6. No conflicts of interest. "The institution shall ensure that the proceeding is carried out free from conflicts of interest by ensuring that there is no commingling of administrative or adjudicative roles."

7. Schools to set their own standard of proof. This is a big one because it rolls back the infamous "Dear Colleague" letter's insistence that schools apply a "preponderance of the evidence" standard. "An institution of higher education may establish and apply such standard of proof as it considers appropriate for purposes of any adjudication carried out as part of an institutional disciplinary proceeding under this section."

8. Students who sue the school and win get attorney's fees. A big one because in most civil litigation in the U.S., prevailing parties don't get their attorney's fees. "In any civil action under this subsection, the court may award the prevailing party (other than the institution of higher education) compensatory damages, reasonable court costs, attorney fees, including expert fees, and any other relief in equity or law that the court deems appropriate."

9. Violations of the new law become a breach of contract. This is a big one that, I suspect, few commentators will recognize. When wrongly expelled students sue their colleges, they can't sue for breach of contract unless the particular right was included in a contract with the school, such as a student handbook. If the school is a private institution, the student is without due process protections, so a breach of contract claim is often all he's got. This new bill explicitly says the words of the new law become part of such a contract. "Each institution of higher education which is subject to this part shall publish annually in the institution’s Student Handbook (or equivalent publication) a statement of the procedures applicable to institutional disciplinary proceedings under this section, and shall publish such statement in the form of a contract between the institution and its students and student organizations."

Jessica Valenti tries to paint the entire GOP--meaning, all its members--as haters and loons: "Women have been treated to the GOP’s ridiculous theories about what constitutes rape for too long without demanding that the explain themselves."

Nice broad-brushing, Jessica--par for the course as far as you are concerned. But maybe you ought to clean up your own house before pull that, Jessica. After all, you are the person who wrote this: "Rape is part of our culture. It's normalized to the point where men who are otherwise decent guys will rape and not even think that it's wrong. And that's what terrifies me."

Senators McCaskill of Missouri, Heller of Nevada, Ayotte of New Hampshire, and Gillibrand of New York will hold a hearing this morning on the proposed Campus Accountability and Safety Act that throws our sons under the proverbial bus in the interest of pandering to extremist women's groups. Apparently, the senators believe that the war on sexual assault cannot be waged without depriving our sons of fair proceedings.

Not a single advocate for the due process rights of the accused will appear at the hearing today, which will resemble a reunion of the sexual grievance industry more than a fair hearing designed to shed light on a thorny issue.

The proposed CASA refers to accusers as "victims" 59 times and as "accusers" only twice. In an earlier version of the bill, accused students were actually called "assailants"--a chilling barometer of how gender extremists have seized not just the public discourse on this issue but the reigns of government.

The bill famously affords substantial resources only to accusing students, none to students who are accused. It would require schools to provide confidential advisers to accusers without providing confidential advisers to accused students, an unmistakable signal that the federal government's goal is not to insure fair hearings but to help accusers prevail.

Perhaps the greatest of the bill's many affronts to due process is the requirement that the persons who will decide whether our sons are expelled are to question accusers in a manner that will prevent the truth from being brought to light, and will assure a finding of guilt. The bill calls it "victim-centered, trauma-informed interview techniques," and it requires that the school "focus[ ] on the experience of the victim." The bill, of course, has it backwards: the subjective "experience" and beliefs of the accuser are of no import when it comes to sexual assault. The only pertinent inquiry is the objective evidence about what occurred--whether, based on the accuser's words, conduct, and outward manifestations, the student accused reasonably understood that the accuser had consented to the act in question. The accuser's "experience" will always be that she was raped, but as even Brett Sokolow, the nation's preeminent campus victim's advocate, has conceded: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen," and "in a lot of these cases, the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to . . .." (As an example of the injustice that will result by focusing on the subjective experience of the accuser, almost half of all college women think that when a woman gives a guy a "nod in agreement," that isn't enough for consent.) According to the proposed bill, the interview cannot suggest that the school is "judging" the reporting student's account of the alleged assault. The bill leaves it up to "the victim" whether she wants the interview of her accusation --an interview that could destroy the life an innocent young man--recorded.

This bill is the product of the sexual grievance industry that thinks your son already gets too much of that due process nonsense. It is a legislative articulation of the old feminist mantra that accusers are always to be believed. All persons of good will need to speak out against it, and to hold the offending senators accountable.

Tuesday, July 28, 2015

Are you sitting down? The "campus rapist" bogeyman--that infamous serial sociopath who preys on unsuspecting college women by plying them with alcohol--doesn't exist after all.

Oops!

You may or may not know that the entire multi-million dollar war on campus rape has been geared toward rooting out this mythical monstrous bastard, whose existence was "revealed" in a very influential 2002 rape study--but it turns out he's the Loch Ness Monster because that study doesn't support the conclusion that he exists, according to articles by Linda M. LeFauve and Robby Soave (here and here).

If Dr. David Lisak (he's the headliner sociologist behind the 2002 study) wants to refute those two articles, he can send his refutation to me and I'll post it in this blog. I must note that I did chuckle reading the articles by Ms. LeFauvre and Mr. Soave. They were terribly critical of Lisak's methods, and of his of explanations regarding the content of his report. Some readers might know that Lisak, a bona fide darling of the sexual grievance industry, co-authored another influential report of a study in which he not only minimized false rape claims but ripped on the work of Dr. Eugene Kanin, who suggested a crisis of false rape claims at the schools he studied. Lisak's criticisms of Dr. Kanin are extremely interesting in light of the criticisms LeFauve and Soave have lodged against Lisak himself. Lisak may want to address that if he bothers to refute the articles.

So, yet another icon of the sexual grievance industry turns out to be not so iconic? Say it ain't so! Add it to the list that includes Crystal Gail Mangum of Duke lacrosse fame; Jackie and Sabrina Erdely of Rolling Stone fame; Emma Sulkowicz and her pet mattress; the one-in-five canard (see here and here); and the meme that false rape claims are exceedingly rare (of the rape claims that can be definitively classified, false claims are more common than actual rapes).

Gee, it turns out everything the sexual grievance industry tells us is wrong. So what accounts for all these college rape claims? Could the war on imaginary rape be ginning up rape claims? There is no question about that. And it is for certain that our daughters are being purposefully confused about what "consent" means--a staggering percentage of them mistake consent for rape. How can I say that? A new Washington Post and Kaiser Family Foundation survey shows that almost half of all college women-- full 44 percent--think that when a woman gives a guy a "nod in agreement," that isn't enough for consent. Read it again, it's almost incredible. Only 51 percent--the barest of majorities--think "a nod in agreement" indicates consent.

Another rationale for campus rape claims is the irrefutable "regret asymmetry" that separates college men and college women and that likely shades women's responses to rape survey queries.

Even one campus rape is too many, but the hysteria needs to end. And that's not going to be easy given the number of people whose livelihoods depend on portraying our sons as rapists-in-waiting. It's up to every one of us to call out their bullshit whenever we see it.

A woman claimed she was raped, so the police went into action and did what they normally do when that occurs. They cordoned off the area where the rape occurred, and they arrested a 32-year-old male scapegoat.

One little problem. It turned out there was no rape. An innocent young man had been wrongly arrested.

So, the police went into action and did what they normally do when that occurs. They thanked the public "for their patience" while they conducted inquiries into the incident-that-never-was, and then -- they let the woman go. Not a single charge was lodged against her. Her name wasn't even mentioned in the various news articles about the incident. Her anonymity is in tact, so the next man who's wrongly arrested on her say-so won't have any way of identifying her as a serial false rape accuser.

Oh, but wait, dear reader. Don't think for a minute that that this woman wasn't punished for subjecting a young man to one of the worst things that can happen to a human being. A police spokeswoman said this: “The woman has been given strong words of advice by police for her actions.”

Read it again: "strong words of advice." Yep. Imagine if you read a story about a rapist being given "strong words of advice." What do you think would happen to that police chief? But for false rape accusers, that's as much punishment as they deserve. It's business-as-usual in our "rape culture."

Is it any wonder that rape accusers believe, with justification, they can cry rape with impunity, for any or no reason at all? A female bus driver lied about being gang raped so she could get her hours at work switched. Women have lied about rape to avoid taking the bar exam and to exact revenge on boyfriends who take too long to buy cigarettes and on men who refuse to buy them a beer. One false rape accuser was just "bored."Cab drivers are a favorite target of false accusers looking for a free fare. The list goes on and on. They lie because they are rarely punished, and they know it. As a result, serial false rape accusers aren't just tolerated, they are rewarded for telling successful lies. See here and here. And even when they are caught, their enablers in the sexual grievance industry insist they should not be prosecuted, much less punished. When a 15-year-old girl told a rape lie that got a 14-year-old boy arrested, anti-rape campaigners said "it is awful that a girl so young has been prosecuted in this way."

You see, dear readers, this happens because the people who dominate the public discourse about sexual assault are happy think in black-and-whites even though ours is a world of grays. They think that because some men get away with rape, we must both rush to judgment and automatically believe every accusation of rape--even when that thinking leads to unspeakable injustice--and that we must turn a blind eye to the innocents who are wrongly accused, as if justice is a zero-sum game. If we ever got serious about it, if we ever removed the politics from crime-fighting and exiled the sexual grievance lobbyists to the kids' table where they belong, we'd see that victims don't always have vaginas and that rape lies destroy innocent lives.

But that's not going to happen, not as long as the public discourse about sexual assault is dominated by people happy to think like children and politicians eager to pander to them.

Thursday, July 16, 2015

Amelia McDonell-Parry had a hissy fit over the "We-Consent" app that aims “to encourage discussion about affirmative consent between mutual partners” by recording a 20 second video of consent being given/received.

First, McDonnell-Parry rolls her eyes over the fact that the creator of this app was a "dude." Because, presumably, "dudes" have nothing positive to contribute to the public discourse when it comes interactions between men and women. The only voices that count are those of Amelia McDonell-Parry and other members of the sexual grievance lobby.

Second, McDonell-Parry notes that these apps are "icky" (a grown-up term, no?) and unnecessary because they were "created in support of the false narrative which says that women lie about being raped all the time, and thus men need to be protected from bogus accusations. Nothing could be further from the truth." She insists that False rape accusations "are exceedingly rare."

Let's pause and review the facts as opposed to the sexual grievance lobby's talking points. (To quote McDonnell-Parry, let’s cut the shit, dude.) Wanna use numbers, McDonnell-Parry? Okay, let's use numbers. Consider a survey that the sexual grievance industry relies on: just 7.8 percent of rape reports can be classified as true. In contrast, 15.6 of rape reports can reliably be classified as false. Or how about this--again, using surveys the sexual grievance lobby relies on: an economist proved their one-in-five stat is way too high. Not his opinion--he used their own numbers. Scary, isn't it? But, I mean, if you want to use numbers, we can use numbers, too.

Third, McDonnell-Parry tosses out what she, apparently, thinks is a rhetorical question. "Seriously, people, specifically DUDES, is it really so hard to know for sure if the person you’re having sex with wants to be there?"

Okay, again, let's look at the facts. A new Washington Post and the Kaiser Family Foundation survey reveals that a full 44 percent of college women think that when a woman gives a guy a "nod in agreement," that isn't enough for consent. Only 51 percent--the barest of majorities--think "a nod in agreement" indicates consent. So, McDonnell-Parry, if 44 percent of all college women think their nod in agreement does not signal consent, then, yes, I'd say it really might be that hard to know for sure if she wants to "be there."

Further, feminist Brett Sokolow, the leader of the campus sexual grievance industry, last year wrote that "in a lot of these cases [involving accusations of sexual assault], the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to . . .." And: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen." Read it again--"overwhelming proof." Sokolow added that he sees "case-after-case" where "sincere victims . . . believe something has happened to them that evidence shows absolutely did not . . . ." He suggested mental health issues play an important factor in these false accusations. It's easy to have misunderstandings in the bedroom when one party concocts rape out of whole cloth.

Further, the National Institute of Justice has said that when it comes to rape surveys, some people don't give accurate survey answers, but it also noted the possibility that men and women may have different perceptions of the same incident. Of course, that doesn't matter to the sexual grievance lobby. The "yes means yes" movement thinks that "consent is to be determined from the perspective of the complainant." To hell with men's perceptions.

As for McDonnell-Parry's insistence that the new app is unnecessary in this era of affirmative consent, the co-author of California's affirmative consent bill in the state assembly, Bonnie Lowenthal, D-Long Beach, was asked how an innocent person is supposed to prove consent. She said this: “Your guess is as good as mine." Nice.

But McDonnell-Parry doesn't bother with any of those facts. Nevertheless, she is correct about this: the app cannot guard against someone changing her mind after she's given consent. Let's consider the reality: if a trier of fact sees a woman giving clear consent via this app, it's going to be pretty damn difficult to convict the guy of rape for something that happened later that night. Prosecutors likely won't even bother with cases like that--and, no, that's not necessarily a good thing. The goal here is not to "get away" with rape, it's to protect those who are legitimately innocent. The second worst enemy of the wrongly accused (after their accusers) are sociopaths who rape--they diminish the credibility of every guy accused of rape. It's in everyone's interest to get them off the streets.

On the flip side, if enough college kids started using this strange app, when a hapless college boy who failed to use it is wrongly accused of rape, the fact that he didn't use it might be cited as proof that there was no consent. That, too, is not a good thing.

I scarcely think I need to defend this blog's credentials when it comes to concern for the wrongly accused, but the new consent app strikes me as a barometer of a sad hook-up culture where drunken barnyard rutting has displaced the staid, time-honored rituals of courtship and delayed gratification. I wouldn't say the app is "icky," perhaps "distasteful" is more appropriate.

This app is a lot of things I don't like, but please don't try to tell me that misunderstandings in the bedroom are not a serious concern, or that the men of the hook-up culture have no need to worry about proving consent, because they do. So what's the solution? We need to come up with better ways to protect the innocent or else we're going to see more and more things like this app, as "icky" and as distasteful as they might be.

Wednesday, July 15, 2015

Any male student thinking of attending the University of California, San Diego--not to mention the more than 12,000 undergraduate male students currently enrolled there--needs to read the chilling judicial decision handed down last week by Judge Joel M. Pressman of the Superior Court of California, County of San Diego. It can be found here. Sadly, although the decision is about just one case involving just one university, most universities are guilty of the same things that happened here.

In the instant case, a 20-year old male student sought relief in court after a University disciplinary proceeding found him responsible for sexual assault. The court didn't just grant the relief, it made it clear that the male student was treated egregiously by his own university.

Judge Pressman said that the disciplinary panel that decided the male student's case, and the procedures used by the school, were outright "unfair" to the male student. In fact, the Judge used the term "unfair," "unfairly" or "unfairness" seven times in his short opinion to describe the University's treatment of the male student.

The hearing was rife with procedural irregularities that prevented the male student from defending himself. Before mentioning them, it is well to note that the court held the evidence did not support the panel's conclusion that a sexual assault occurred:

At the hearing on December 12, 2014, petitioner testified clearly that the allegation of touching on February 1, 2014 was false and did not occur. The only evidence presented in any meaningful way at the hearing was the testimony of Ms. Roe. Ms. Roe stated that petitioner kept 'trying to finger [her] and touch [her] down there.' Also, Ms. Roe did not object to sexual contact per se, and only explained that it was not pleasurable for her at that time.

Additionally, Ms. Roe admitted that she voluntarily continued consensual sexual activity with Mr. Doe later that very same day. The Court is not weighing Ms. Roe's credibility. But the incident on the morning of February 1, cannot be viewed in a vacuum. When viewed as part of the entire narrative, the sequence of events do not demonstrate non-consensual behavior. What the evidence does show is Ms. Roe's personal regret for engaging in sexual activity beyond her boundaries. (See AR 20-21) The panel's finding in paragraph 3 illustrates the lack of evidence: "Jane stated that she physically wanted to have sex with Ryan but mentally wouldn't." The record reflects this ambivalence on the part of Ms. Roe. But Ms. Roe's own mental reservations alone cannot be imputed to petitioner, particularly if she is indicating physically she wants to have sex.

The hearing was stacked against the accused male student from the outset because of the procedures employed--and they are procedures that could ensnare any male student in the current climate of the academy. The only witness at the hearing was Ms. Roe. Yet, in the closing argument made by the University's representative (a closing argument is not evidence), he was permitted to talk about a report written by someone named Elena Dalcourt of the UCSD Office for the Prevention of Harassment & Discrimination. Dalcourt supposedly conducted an "investigation" of the incident, and the University's representative read from Dalcourt's report in his closing argument: "Based upon the totality of the circumstances and the evidence presented, I find it more likely than not that on February 1, Mr. Doe ignored Ms. Roe's objections to sexual activity in violation of the Student Sex Offense Policy."

Not only did the panel allow this statement to be read, the panel actually relied on Dalcourt's report in deciding that the male student was guilty.

The problem was that Ms. Dalcourt did not testify--the University didn't even bother to bring her to the hearing. The male student on trial had no opportunity to cross examine her. Beyond that, the male student was not even given the purported evidence Dalcourt relied on to reach her conclusion and was, thus, deprived of any opportunity to challenge that evidence--to show it was unreliable or outright wrong. Judge Pressman held that "the hearing did not allow [the male student] any opportunity to refute Ms. Dalcourt's findings."

There is another fundamental problem with the panel's reliance on the Dalcourt report. In a sexual assault proceeding, it is repugnant to due process and all notions of fairness to allow a purported expert to feed the trier of fact the conclusion that a sexual assault was committed. See here. As Judge Pressman explained, "it was the panel's responsibility to determine whether it was more likely than not that petitioner violated the [University's sexual assault] policy and not defer to an investigator who was not even present to testify at the hearing."

Perhaps the most egregious injustice was that the university unfairly limited petitioner's right to cross-examine the primary witness against him, Ms. Roe. The panel screened the male student's questions and refused to ask numerous questions he wanted to pose (the panel did not similarly screen the University's questions). The panel allowed the accuser to unilaterally cut off questions about their consensual relationship after-the-fact, as if such evidence could not possibly shed any light on whether a sexual assault occurred.

The court also held that the accuser should not have been hidden behind a barrier during the hearing--the accused has the right to confront adverse witnesses, and the accuser should not be hidden from the trier of fact given "the importance [of] demeanor and non-verbal communication in order to properly evaluate credibility." This, the court explained, was prejudicial to the male student.

Perhaps the most bizarre, and chilling, aspect of the case is that after the male student was sanctioned, when he filed his appeals (as was his right under the University's policy), the University kept increasing his punishment, without explanation. "Given the lack of rationale by both Dean Mallory and the Council of Provosts for the increased sanctions, it appears the increased sanctions are punitive towards Petitioner for appealing the decision of the Panel."

Read that again: a court in California has ruled that a male student was severely punished by his University for doing nothing more than exercising a right that his University afforded him.

The court also held that the panel made an unfair inference of guilt based on the male student's invocation of his right to remain silent under the Fifth Amendment. The right to remain silent is among our greatest bulwarks against tyranny--this right wasn't designed to shelter the guilty but to protect the innocent. As the Supreme Court has stated, "one of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances." To punish a male student for invoking it is anathema to fairness.

FIRE wrote this about the decision: "The decision in Doe v. UCSD is important because it demonstrates that when courts subject campus proceedings to scrutiny, the ugly truth of their shortcomings is glaring." Insuring fairness in thorny "he said-she said" hearings is difficult even for judges who are trained to do it and who do it regularly. The egregious unfairness in this case illustrates that it is a task that is impossible for amateurs.

I would be surprised if the University doesn't appeal--if Judge Pressman's holding is unchallenged, it will be difficult for the University to explain to its male student population why it treats them unfairly. But Judge Pressman's decision ought to be a wake-up call for all colleges who cavalierly dispense with basic fairness for male students in their sexual assault hearings. The campus sexual assault witch hunt has been driven by a public outcry funded by a wealthy, and overly zealous, sexual grievance industry. Craven politicians who worship at the altar of group identity politics have seized upon it. But Innocence Project guru Mark A Godsey has warned that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases." Judge Pressman's decision fired a shot across the bow of the sexual grievance industry. Let's hope his decision has broader implications.

Tuesday, July 14, 2015

". . . 15.6 of reports could reliably be determined as false, another 17.9 percent weren't actually crimes and just 1.2 percent (or 2.2 percent) could be reliably determined as true. The remainder would fall into a ''we'll never know for sure' category."

Except it's not. A new Washington Post and the Kaiser Family Foundation survey contains a very disturbing statistic that has been entirely overlooked in the news about it--a statistic revealing that almost half of all college women mistake consent for rape. According to the survey, a full 44 percent of college women think that when a woman gives a guy a "nod in agreement," that isn't enough for consent. Only 51 percent--the barest of majorities--think "a nod in agreement" indicates consent. You'd have to be an ostrich to think that's not recipe for potentially catastrophic misunderstandings.

And consider this. Feminist Brett Sokolow, the guru of the campus sexual grievance industry who has done more to bolster the rights of sexual assault victims on college campuses than anyone, last year wrote that "in a lot of these cases [accusations of sexual assault], the campus is holding the male accountable in spite of the evidence – or the lack thereof – because they think they are supposed to . . .." Note the words "a lot." Sokolow also said this: "We see complainants who genuinely believe they have been assaulted, despite overwhelming proof that it did not happen." Read it again--"overwhelming proof." Sokolow added that he sees "case-after-case" where "sincere victims . . . believe something has happened to them that evidence shows absolutely did not . . . ." Sokolow suggested mental health issues play an important factor in these false accusations. "Case after case." "Overwhelming proof." "A lot." That's not COTWA or some men's rights advocate speaking, that's Brett Sokolow.

And note this. The National Institute of Justice has said that when it comes to rape surveys, some people don't give accurate survey answers, but it also noted the possibility that men and women may have different perceptions of the same incident.

Yet if you express a concern about misunderstandings in the bedroom, you hate women? Seriously?

The new consent app is the product of our sad hook-up culture that strips humanity from the most intimate of human encounters. The absence of genuine emotional intimacy breeds not just rape but false rape claims, and the latter is what prompted this new app. While the new app may be a barometer of a culture where drunken barnyard rutting has displaced the staid, time-honored rituals of courtship and delayed gratification, it is not a barometer of a culture that hates women or that denies rape. That is simply ridiculous.

Instead of attacking those who raise concerns about bedroom misunderstandings, the sexual grievance lobby would do well to spend its resources educating our daughters about consent, about the "regret asymmetry" that separates men and women, and about the horrors of false rape claims.

Wednesday, July 8, 2015

There is much alarm over the "yes means yes" movement, but most people aren't alarmed over the right things. A short tutorial is in order--here are the two most alarming things about the "yes means yes" movement that I've seen:

First: "Consent is to be determined from the perspective of the complainant."

This is astounding, and it appears to be the philosophy underlying or swirling about the entire campus anti-rape crusade. There is a lot of confusion among college women about what constitutes "consent," and I am betting that it's because this outlandish notion has crept into the campus culture. I'll give you an illustration: a new Washington Post and Kaiser Family Foundation survey contains a disturbing statistic that has been entirely overlooked in the news about it: almost half of all college women mistake consent for rape. According to the survey, a full 44 percent of college women think that when a woman gives a guy a "nod in agreement," that isn't enough for consent. Read it again--it's almost incredible. Only 51 percent--the barest of majorities--think "a nod in agreement" indicates consent. Presumably, the 44 percent think that "consent" is not tied to a woman's words or outward conduct but is premised solely on her subjective beliefs.

Of course, consent is not properly determined from the "perspective of the accuser." Such a standard not only is grossly unjust and unconstitutional, it doesn't work. Consent is not determined based on the subjective state of mind of the complainant but rather her outward manifestations--her words and conduct--as reasonably construed. Note that an accused can't hide behind an unreasonable interpretation of an accuser's words or conduct and thereby transmogrify non-consent into consent. By the same token, a woman who is not incapacitated and who "nods in agreement" to have sex should not be heard to complain later that she didn't consent. Her secret, subjective desires or intentions are of no import if she has outwardly manifested her consent. Period.

The notion that that consent is determined from the "perspective of the accuser" seems to stem from a goofy decision of the Supreme Court of Canada. Here's how it's been described:

In a series of cases culminating in R. v. Ewanchuk, the Supreme Court of Canada has held that, for the purpose of the actus reus, nonconsent is determined entirely from the perspective of the complainant. Consent focuses on whether “the complainant in her mind wanted the sexual touching to take place.” Consent cannot be implied from silence, passivity, or ambiguous behaviour, because it is the complainant’s state of mind that is at issue. Evidence about her behaviour may be relevant to whether the trier of fact believes the complainant’s assertion of nonconsent, but the focus is still on her thought process, not her actions or inaction.

So, in Canada, when a woman "nods in agreement" to have sex, such clear conduct "may" be relevant to deciding whether she "consented," but what really matters is her secret, subjective state of mind. A woman can nod "yes" but secretly mean "no," and the guy's a rapist if she says so. This is a law and a policy that has crossed the line into pathology. It is self-evidently idiotic.

Second, the "yes means yes" laws would put the burden of proving consent on the accused. This policy flips on its head the long-settled burden of proof and makes the act of love-making -- an act that occurs somewhere in the world countless times every second -- a presumptive offense merely on the basis of an accusation. That is a sea-change in our law.

Not only is shifting the burden of proving consent in rape cases unconstitutional, it is an idea long pushed by extremist victims' advocates. We've been warning about it here for years. Linda Brookover Bourque's Defining Rape said in 1989 that the ultimate objective of rape reform is shifting the burden of proof from "the victim" to "the offender." Mainstream feminist extremist Jessica Valenti advocates that America look to Swedish law as its legislative model for rape, and "activists and legal experts in Sweden want to change the law there so that the burden of proof is on the accused; the alleged rapist would have to show that he got consent, instead of the victim having to prove that she didn't give it." Serious feminist scholars have written extensively on the subject in an effort to change the law. Criminal law professor and feminist Michele Alexandre would make the sex act a presumed crime whenever a woman cries rape. See M. Alexandre, ‘Girls Gone Wild’ and Rape Law: Revising the Contractual Concept of Consent & Ensuring an Unbiased Application of ‘Reasonable Doubt’ When the Victim is Non-Traditional, 17 American Univ. Journal of Gender, Social Policy & the Law 1, 41, 55-56 (2009). In Addressing Rape Reform in Law and Practice (2008), Professor Susan Caringella of Western Michigan University's Sociology Department, not only refused to pay lip service to insuring that the innocent aren't punished with the guilty, she goes so far as to declare that men accused of rape are "overprotect[ed]." She writes: "It is high time to give victims a fair shake, to dismantle the zealous overprotections for men accused of this crime, which have been buoyed up by the myths about false accusations, ulterior motives, and so on, commonly embraced when rape charges are levied." Prof. Caringella advocates a shift in the burden of proof by enacting affirmative consent laws.

Last year, the Washington Supreme Court reversed some very bad law that put the burden of proving consent in rape cases on the accused. Unfortunately, college campuses are considered worthy of constitutional protection.

The "affirmative consent" standard is the easy, but not the appropriate, way to respond to the public outcry about sexual assault on campus. Innocence Project guru Mark A Godsey has said that "the risk of wrongful conviction is the highest when there’s public outcry. Most of the exonerations and wrongful convictions have occurred in rape cases."

Finally, a brief word about the consent contracts, in the news the past couple of days. They are just silly. Among the other silly things about them are the following: (1) few, if any, college students who have consensual sex will bother with such a "contract"; (2) even legally operative written contracts with "no oral modification" clauses generally can altered by oral agreement via waiver or estoppel theories, and in the context of sexual relations, consent can be unilaterally withdrawn at any time by either party; and (3) even contracts entered into with ostensible assent can be challenged on the basis of fraud, duress, mistake, unconscionability, or lack of capacity.

On the other hand, if I were representing a college kid accused of rape, I'd be thrilled if he and his accuser signed one of these before the pertinent event.

Tuesday, July 7, 2015

Donald Trump touched off a firestorm with his comments about undocumented immigrants and rape: “They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people,” Trump said during his campaign announcement earlier this month.

Even though Trump didn't say how many undocumented immigrants are rapists, his words suggest that rape is normalized among undocumented immigrants who are male. That is simply wrong--see here. Trump is being, and ought to be, widely condemned for reducing an entire class of people to vile caricature. He's being kicked off of television networks, is losing his corporate sponsors, and is being branded a nutcase all over America.

It is interesting that Trump is most heavily criticized by folks who would never dream of criticizing a lot of other public figures who think rape is "normalized" among college men, or college athletes, or fraternity men, or "men" in general. You see, those groups aren't considered to be marginalized groups, so, apparently, it's fair to unfairly malign their members by saying rape is "normalized" in their ranks.

Take, for instance, Jessica Valenti--she's the feminist writer who believes that rape is normal for even decent men: "Rape is part of our culture; it's normalized to the point where men who are otherwise decent guys will rape and not even think that it's wrong. And that's what terrifies me." (A few months ago, Valenti tweeted Socialist Michael Laxer's epiphany that "all men" are responsible for the bad things that happen to women. Laxer clucked: "There are no 'good guys,'" and that men, as a class, "are responsible.") I don't see Valenti being ostracized from the public square for those views.

So it's fair to unfairly malign men, so long as we don't narrow the class to undocumented immigrant men or, presumably, other marginalized groups of men.

Wednesday, July 1, 2015

White supremacist Dylann Roof cried, "You rape our women," just before he shot nine innocent black people in a Charleston church, and media outlets have jumped on that comment as more evidence that whites have historically blamed blacks for atrocities they didn't commit. See, e.g., here.

That minority males have been, and are, on the receiving end of injustice more often than anyone is scarcely a newsflash. The social pathologies of the inner city seem to make it easier -- and somehow more acceptable -- to stereotype and blame the innocent who live there for crimes they didn't commit. This is a problem of monumental proportions that has never been adequately addressed.

But it is curious that, when it comes to false rape claims, progressives and other folks who ought to know better, including members of the black and Latino communities, seem to get more bent out of shape over the political incorrectness of the lie than the lie itself.

In 2009, at Northwestern University, a bogus rape claim prompted two campus-wide emails: the first notified students that a female Northwestern student was sexually assaulted. It provided an explicit description of the suspect as follows: "African American male, approximately 25 years old, 5-6 – 5-7 inches tall, with a thin but muscular build, wearing a black leather jacket and dark jeans." The second email declared the first e-mail’s report as "false."

It was the first email's explicit description of the suspect that drew concerns and provoked a discussion about race on campus. "One student [at a panel discussion about the rape claim] said when she first read the e-mail she was more concerned about how it might reinforce racial perceptions than how it would influence perception of gender. She said she was surprised by the specificity, when previous cases have had more blanket descriptions that could apply to people of any race." A criminology professor said: "All black young men on campus become vulnerable to further suspicion."

Rape lies often include a "scary" black or Hispanic male suspect in an attempt to lend plausibility to the fabrication. In 2011, a Brooklyn "nun" from a fringe Christian sect falsely claimed "that she was choked and raped by a black man." The New York Daily News reported that black men in the neighborhood were angered, but not surprised. According to the Daily News: "Cops even released a sketch of the phantom suspect and pleaded for the public to help catch him. After more questioning, [the accuser] admitted she concocted the assault to cover up her sexual shenanigans with a bodega worker." The men in the neighborhood were "pissed," as one man put it. "I don't know why they must accuse falsely like that. I think it must be prejudice," said a 56-year-old advertising worker who lived across from the house where the "nun" lived.

Certainly, a rape lie is all the more despicable when it is seasoned with racial animus, but it is sufficiently despicable without it to warrant our outrage.

Contrast those cases noted above with the one involving Brian Banks, who is black. After Brian was wrongly accused, his lawyer convinced him to plead guilty -- because he was a black male: "If [you] go into that courtroom," Brian remembers her telling him, "the jury [is] automatically going to see a big, black teenager and automatically assume [you are] guilty." Brian spent years in prison for a rape he didn't commit--read Brian's harrowing story here. It is curious that when Brian's case is discussed, the connection between his race and the injustice perpetrated on him are mentioned but downplayed, likely because his false accuser was black. The rape lie was not politically incorrect.

Do you remember the Hofstra false rape case? The minority youths accused of rape were automatically deemed guilty and were treated like animals. They were even booed on national television after it was confirmed that they were wrongly accused. The Hofstra case was among the worst rushes to judgment in recent memory, but the accuser was black, and the Hofstra case never attracted the outrage of progressives.

Sadly, for too many commentators in the mainstream media, if the particular injustice doesn't present a morality play about a perceived victim group, they have no interest in it. But it didn't matter to Brian Banks or the Hofstra accused that their accusers were black. Nor did it matter to the Duke lacrosse players that they happened to be white and their accuser was black. The injustice of a false rape claim is an injustice regardless of the color of the accused or the accuser.

Jeannine Risley allegedly overturned furniture in the middle of the night to fake signs of a struggle after being told that she was going to be fired.

She claimed she was asleep in a guest annexe of her boss' home when a booted man pulled her out of bed and raped her at knifepoint.

However, police who examined her wrist-worn Fitbit fitness monitor - which includes people's vital signs and data about their movements - said it showed she had been awake and walking around at the time of the alleged attack.

A court in Florida heard how police who rushed to the home in March following a 911 call fund overturned furniture, a knife and a bottle of vodka.

The 43-year-old later told authorities an unknown man had pulled her out of bed at around midnight, attacked her in a bathroom and raped her at knifepoint, according to court documents.

However, police suspected her story did not add up when they failed to find any footprints in the snow around the home or any evidence of an intruder inside.

They discovered Risley's Fitbit - which she claimed she had lost - in a corridor and accessed the data after she agreed to hand over her login details.

It showed that she was awake and walking around at the time she claimed she was sleeping.

Further documents filed with the court reveal that her boss, who has not been named, had told her she was set to lose her role as a temporary director with his company.

Risley, of Saint Petersburg, Florida, has been charged with false reports to law enforcement, false alarms to public safety and tampering with evidence.

She appeared in court with her husband, but spoke only to confirm her name and personal details.

A trial is now set to take place later this year, unless she chooses to enter a plea.